Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
Aug 08 2014, 10:29 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN P. WILSON GREGORY F. ZOELLER
Wilson & Wilson Attorney General of Indiana
Greenwood, Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASON KEITH SCOTT, )
)
Appellant-Defendant, )
)
vs. ) No.41A01-1311-CR-499
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable K. Mark Loyd, Judge
Cause No. 41C01-1107-FD-379
August 8, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Following a bench trial, Jason Scott was convicted of Operating a Vehicle While
Intoxicated1 (OWI) as a class D felony. Scott now appeals, presenting two issues for our
review:
1. Did the State present sufficient evidence to sustain Scott’s conviction?
2. Is the sentence imposed inappropriate?
We affirm.
On June 25, 2011, Greenwood Police Officer Jay Arnold was dispatched to respond
to a suspected impaired driver. Officer Arnold found a vehicle matching the description
and plate number stopped at a traffic light. When the light changed, the driver drove
through the intersection, pulled over to the shoulder, and turned on his hazard lights.
Officer Arnold thought the vehicle might be disabled, so he pulled behind it and activated
his emergency lights. When Officer Arnold approached the vehicle, he smelled alcohol
inside the passenger compartment and observed the passenger in the front seat not wearing
a seatbelt. Scott was driving the vehicle, his girlfriend, Julie Thorpe, was in the front
passenger seat, and Thorpe’s young child was in the backseat. When Officer Arnold asked
Scott for his driver’s license, Scott told the officer that his license was suspended. Thorpe
was allowed to drive the vehicle away and Scott was taken into custody. At the station,
Scott failed multiple field sobriety tests and a breath test showed that that he had an alcohol
concentration equivalent (ACE) of .18 of a gram of alcohol per 210 liters of breath.
1
The version of the governing statutes, i.e., Ind. Code Ann. § 9-30-5-3 (West, Westlaw 2011) and I.C. § 9-
30-5-1 (West, Westlaw 2011) in effect at the time this offense was committed classified it as a class D
felony. This statute has since been revised and in its current form reclassifies the offense as a Level 6
felony. See I.C. § 9-30-5-3 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular
Session and Second Regular Technical Session of the 118th General Assembly). The new classification,
however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was
committed on June 25, 2011, it retains the former classification.
2
Scott was arrested and charged with multiple OWI offenses. Ultimately, Scott was
convicted of OWI as a class D felony and found to be a habitual substance offender. The
trial court sentenced Scott to eight years in the Department of Correction: three years for
the offense, enhanced by five years for being a habitual substance offender. Scott now
appeals.
1.
Scott argues the State presented insufficient evidence to support his OWI
conviction. When considering a challenge to the sufficiency of evidence to support a
conviction, we respect the fact-finder’s exclusive province to weigh conflicting evidence
and therefore neither reweigh the evidence nor judge witness credibility. McHenry v. State,
820 N.E.2d 124 (Ind. 2005). We consider only the probative evidence and reasonable
inferences supporting the verdict, and “must affirm ‘if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt.’” Id. at 126 (quoting Tobar v.
State, 740 N.E.2d 109, 111–12 (Ind. 2000)).
In support of his argument concerning the sufficiency of the evidence, Scott makes
multiple allegations, including sloppy police work by the initial investigating officer, lack
of probable cause and/or reasonable suspicion,2 failure to establish corroborating evidence
of the seatbelt violation, and failure to present evidence concerning the police informant.3
2
Scott makes no argument on appeal concerning the admission or suppression of any evidence.
3
Scott’s argument that the State failed to meet its burden of proof to establish that Scott endangered anyone
is irrelevant because Scott was not convicted of OWI causing endangerment. See I.C. § 90-30-5-2 (West,
Westlaw 2011).
3
These claims are nothing more than invitations to reweigh the evidence, which we will not
do. To support Scott’s class D felony OWI conviction, the State was required to prove that
Scott operated a vehicle with an ACE of at least .15 grams of alcohol per 210 liters of
breath and had a previous OWI conviction that occurred within the 5 years immediately
preceding the current offense. I.C. § 9-30-5-1; I.C. § 9-30-5-3. The State provided
evidence that Scott had an ACE of .18 and Scott admitted that he was driving the vehicle.
Scott had a prior OWI conviction in 2010. This evidence is sufficient to support Scott’s
OWI conviction.
2.
Finally, Scott argues that his eight-year sentence is inappropriate in light of the
nature of the offense and the character of the offender. Article 7, section 4 of the Indiana
Constitution grants our Supreme Court the power to review and revise criminal sentences.
Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the
same task. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). Pursuant to App. R. 7(B), we
may revise a sentence “if, after due consideration of the trial court’s decision, the Court
finds that the sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009). Nevertheless, “we
must and should exercise deference to a trial court’s sentencing decision, both because
Rule 7(B) requires us to give ‘due consideration’ to that decision and because we
understand and recognize the unique perspective a trial court brings to its sentencing
decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).
4
Whether we regard a sentence as inappropriate “turns on our sense of the culpability
of the defendant, the severity of the crime, the damage done to others, and myriad other
factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d at 1224.
Furthermore, “[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in
each case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not
whether another sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)
(emphasis in original).
Scott was sentenced to a three years for the class D felony, enhanced by five years
for being a habitual substance offender. A class D felony has a sentencing range of six
months to three years, with an advisory sentence of one and one-half years. Ind. Code Ann.
§ 35-50-2-7 (West, Westlaw 2012). Habitual substance offenders face an additional fixed
sentence of three to eight years imprisonment. I.C. § 35-50-2-10(f) (West, Westlaw 2011).
Scott received an eight-year aggregate sentence.
With regard to the nature of the offense, Scott had a suspended driver’s license at
the time of the offense. Furthermore, Scott put not only himself at risk, but Thorpe and her
young child in the backseat as well. As to the character of the offender, we observe that
Scott’s criminal history includes multiple felony and misdemeanor convictions, including
domestic battery as a class D felony, criminal recklessness as a class D felony, battery
resulting in bodily injury, driving while suspended, and conversion. Scott’s lengthy history
5
of criminal activity is indicative of his disregard for the law and provides ample
justification for the sentence imposed. Scott has failed to meet the burden of persuading
this court that his eight-year sentence was inappropriate.
Judgment affirmed.
Vaidik, C.J., and May, J., concur.
6
Jason Keith Scott v. State of Indiana
Combined Opinion